Lerblance et al v. Calyx Energy III, LLC

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
RICHARD C. LERBLANCE and
CHIEFTAIN ROYALTY
COMPANY, on behalf of
themselves and all others similarly
situated,
Plaintiffs,
v.
CALYX ENERGY III, LLC,
Defendant.
Case No. CIV-23-47-JFH-GLJ
ORDER
This matter comes before the Court on Plaintiffs’ Motion to (1) Exclude Testimony
of Defendant’s Lawyer/Expert, Kris L. Terry; and (2) Strike the Terry Rebuttal [Docket
Nos. 126, 129]. The Court has referred this case to the undersigned Magistrate Judge for
all proceedings in accordance with 28 U.S.C. § 636. 	See Docket No. 28. 	As set forth
below, the undersigned Magistrate Judge finds that the motion should be DENIED.
I. 	PROCEDURAL HISTORY
Plaintiffs Richard Lerblance, on behalf of himself and all others similarly situated,
and Chieftain Royalty Company filed this case on February 6, 2023, see Docket Nos. 1-2,
then filed an Amended Complaint on October 13, 2023, see Docket No. 47. On September
13, 2025, Plaintiffs filed Plaintiffs’ Motion for Class Certification and Opening Brief in
Support Thereof [Docket No. 115], which sets out causes of action for breach of express
covenants and the implied duty to market in each relevant oil and gas lease, unjust
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enrichment, and fraud, from May 1, 2015, to present. 	[Docket No. 115, pp. 25-40].
Defendant’s response to Plaintiffs’ Motion for Class Certification relies, in part, on expert
testimony and reports from Kris L. Terry. Plaintiffs move to exclude Terry’s opinions, as
well as exclude and/or strike her rebuttal report entirely [Docket No. 129]. 	The
undersigned Magistrate Judge set the Plaintiff’s Motion to Exclude, Motion for Class
Certification, and Defendant’s Motion for Protective Order [Docket Nos. 115, 126, 129, &
152] for evidentiary hearing, which was ultimately held on February 11-12, 2026 [Docket
Nos. 165-168]. 	Following the evidentiary hearing, including arguments as to Plaintiffs’
Motion to Exclude, the undersigned Magistrate Judge took all matters under advisement.
II. 	Legal Standard
The trial court acts as a “gatekeeper” of proffered expert testimony by reviewing
expert testimony for relevance pursuant to Fed. R. Evid. 401 and reliability pursuant to
Fed. R. Evid. 702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-
595 (1993); see also United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009)
(“[T]he district court must satisfy itself that the proposed expert testimony is both reliable
and relevant, in that it will assist the trier of fact, before permitting a jury to assess such
testimony”) (quotation omitted). In performing its gatekeeping role, the Court is mindful
of the fact that “[a] key but sometimes forgotten principle of Rule 702 and Daubert is that
Rule 702, both before and after Daubert, was intended to relax traditional barriers to
admission of expert opinion testimony.” 	Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d
1071, 1082-1083 (D. Colo. 2006); see also Daubert, 509 U.S. at 588 (noting that Rule 702
represents part of the “liberal thrust” of the Federal Rules of Evidence); United States v.
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Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995) (the court should liberally admit expert
testimony and has broad discretion in deciding whether to admit or exclude expert
testimony); Fed. R. Evid. 702 advisory comm. notes (2000) (exclusion of expert testimony
under Fed. R. Evid. 702 “is the exception rather than the rule.”).
Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule
702 provides that a witness who is qualified as an expert by “knowledge, skill, experience,
training, or education” may testify if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. 	The proponent of a challenged expert must demonstrate by a
preponderance of the evidence that the expert’s testimony and opinion is admissible.
Nacchio, 555 F.3d at 1241; Fed. R. Evid. 702 advisory comm. notes (2000).
In determining whether expert testimony is admissible, the Court generally employs
a two-step analysis. 	First, the court determines whether the experts are qualified by
“‘knowledge, skill, experience, training, or education’” to render an opinion. 	See Roe v.
FCA US LLC, 42 F.4th 1175, 1180 (10th Cir. 2022) (quoting Fed. R. Evid. 702). Second,
if the experts are qualified, the Court determines whether their opinions are “reliable” under
the principles set forth under Daubert, 509 U.S. 579, and Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999). Id. Moreover, the requirement that testimony must be
reliable does not mean that the party offering such testimony must prove “that the expert
is indisputably correct.” Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2004)
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(quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999)). Rather, the party
need only prove that “the method employed by the expert in reaching the conclusion is
scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule
702’s reliability requirements.” 	Id. (quoting Mitchell, 165 F.3d at 781). 	However,
“nothing in either Daubert or the Federal Rules of Evidence requires a district court to
admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.
A court may conclude that there is simply too great an analytical gap between the data and
the opinion proffered.” 	Roe, 42 F.4th at 1181 (quoting General Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997)).
While an expert may not espouse legal conclusions, under Fed. R. Evid. 704(a), “an
opinion is not objectionable just because it embraces an ultimate issue.” See also Phillips
v. Calhoun, 956 F.2d 949, 952 (10th Cir. 1992) (“The district court merely permitted the
city’s personnel director and his counterpart at Del City, Oklahoma, who has had
considerable consulting experience in the preparation of personnel manuals and job
classification plans for various Oklahoma municipalities, to offer their understanding of
the customary meaning and usage of the terms in question. The use of experts to assist the
interpretation of documents in this fashion is generally accepted, and the testimony offered,
which merely expressed each affiant's informed opinion concerning the real-world
signification of the terms, did not violate the principle[.] 	Consideration of this evidence
was not an abuse of the district court’s recognized discretion over the admission of expert
testimony.”) (quotation omitted).
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Furthermore, “[t]he Court generally disfavors motions to strike, and it especially
disfavors them in this instance.” Wallace B. Roderick Revocable Living Tr. v. XTO Energy,
Inc., 2016 WL 2344561, at *1 (D. Kan. May 4, 2016). 	“The district court’s class
certification order, while important, is also preliminary: ‘An order that grants or denies
class certification may be altered or amended before final judgment.’” Sali v. Corona Reg’l
Med. Ctr., 909 F.3d 996, 1004 (9th Cir. 2018) (quoting Fed. R. Civ. P. 23(c)(1)(C)).
Furthermore, “[a] class certification hearing is not a hearing to decide the admissibility of
evidence, but whether the case should proceed as a class under [R]ule 23; in that sense, it
is more like a hearing under [R]ule 12(b)(6) or [R]ule 56 than one to determine
admissibility under the rules of evidence.” Zuniga v. Bernalillo Cnty., 319 F.R.D. 640, 659
n.5 (D.N.M. 2016). Although the Tenth Circuit has provided no direct guidance, it appears
that in class certification proceedings, “evidentiary rules need not be strictly applied at the
class certification stage.” Ammons v. La-Z-Boy, Inc., 2008 WL 5142186, at *12 (D. Utah
Dec. 5, 2008) (collecting cases). However, the more recent “trend of authority in favor of
applying Daubert at the class certification stage is in accord with suggestions from the
Supreme Court [in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 354 (2011) (expressing
doubt about district court's conclusion that Daubert did not apply at class certification
stage)].” In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig.,
2019 WL 1569294, at *3 (D. Kan. Apr. 11, 2019) (“‘Likewise, several recent opinions
from district courts within the Tenth Circuit have permitted, or signaled the availability of,
Daubert-style 	challenges 	at 	the 	class 	certification 	stage.’”) 	(citing 	Beltran 	v.
InterExchange, Inc., 2018 WL 1509258, at *4 (D. Colo. Mar. 27, 2018) (adopting
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magistrate judge’s order employing “relaxed Daubert-like standard”); Miller v. Farmers
Ins. Grp., 2012 WL 8017244, at *5 (W.D. Okla. Mar. 22, 2012) (relying on language from
Duke to conclude it was appropriate to apply Daubert ); In re Cox Enters., Inc. Set-Top
Cable Television Box Antitrust Litig., 2011 WL 6826813, at *14 (W.D. Okla. Dec. 28,
2011) (same); see also In re Syngenta AG MIR 162 Corn Litig., 2016 WL 5371856, at *7
(D. Kan. Sept. 26, 2016) (suggesting availability of Daubert challenge at class certification
stage: “Although Syngenta challenges the reliability of those experts’ opinions, it . . . did
not raise a Daubert challenge, and the Court assumes the admissibility of those opinions at
this stage”).
Even so, “a judge, not a jury, decides class certification. The concerns underlying
Daubert thus are not fully in play and this may make a ‘less stringent application of
Daubert’ appropriate.” 	In re EpiPen, 2019 WL 1569294, at *3 (quoting In re Zurn Pex
Plumbing Products Liability Litigation, 644 F.3d 604, 613 (8th Cir. 2011)). “The purpose
of Rule 26(a)(2)’s expert disclosure requirements is to eliminate surprise and provide the
opposing party with enough information regarding the expert’s opinions and methodology
to prepare efficiently for deposition, any pretrial motions and trial.” 	Cook, 580 F. Supp.
2d at 1122. 	“Rule 26(a)(2) also authorizes admission of rebuttal expert testimony.”
Duncan Grp., LLC v. Cimarex Energy Co., 2023 WL 3269699, at *4 (W.D. Okla. Apr. 18,
2023) (citing Fed. R. Civ. P. 26(a)(2)(D)(ii)). “A party’s expert disclosures must be made
‘at the times and in the sequence that the court orders.’” Id.at *3 (quoting Fed. R. Civ. P.
26(a)(2)(D)). 	Accordingly, the undersigned Magistrate Judge proceeds with a “focused
Daubert analysis which scrutinize[s] the reliability of the expert testimony in light of the
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criteria for class certification and the current state of the evidence.” In re Zurn, 644 F.3d
at 614. 	In the class certification context, then, “any Daubert analysis performed by the
court will focus primarily on: (1) the knowledge, training, experience, and qualifications
of the expert; and (2) the methodology relied on by the expert in formulating the challenged
opinion.” In re EpiPen, 2019 WL 1569294, at *4.
“The Federal Rules specifically limit rebuttal expert testimony to evidence that is
‘intended solely to contradict or rebut evidence on the same subject matter identified by
another party’ in its expert disclosures. In re EpiPen (Epinephrine Injection, USP) Mktg.,
Sales Pracs. & Antitrust Litig., 2020 WL 1164869, at *14 (D. Kan. Mar. 10, 2020) (quoting
Fed. R. Civ. P. 26(a)(2)(D)(ii)). Furthermore, “[r]ebuttal expert reports are not the proper
place for presenting new arguments,” and they “cannot put forth their own theories; they
must restrict their testimony to attacking the theories offered by the adversary’s experts.”
Spring Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv. II, LLC, 2016 WL 1597529, at
*3 (D. Colo. Apr. 21, 2016) (“Rebuttal expert reports necessitate a showing of facts
supporting the opposite conclusion of those at which the opposing party’s experts arrived
in their response reports.”) (quotations omitted). Put another way, “[a] court properly may
admit rebuttal evidence on a topic when a party opens the door to [that] topic. 	But
generally, courts will exclude use of a rebuttal expert to introduce evidence more properly
a part of a party’s case-in-chief, especially if the alleged rebuttal expert is used to introduce
new legal theories. In re EpiPen, 2020 WL 1164869, at *14 (quotations omitted).
Guided by these principles, this Court has “broad discretion” to evaluate whether an
expert is helpful, qualified, and reliable under Fed. R. Evid. 702 and in the context of a
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motion for class certification. United States v. Velarde, 214 F.3d 1204, 1208–09 (10th Cir.
2000). “It [also] follows that any Daubert ruling specific to the class certification stage is
subject to amendment for purposes of the class certification determination and is not finally
determinative of the admissibility of the expert's testimony at a trial on the merits.” In re
EpiPen, 2019 WL 1569294, at *4 (citing In re Zurn, 644 F.3d at 610 (“We have never
required a district court to decide conclusively at the class certification stage what evidence
will ultimately be admissible at trial.”).
III. 	ANALYSIS
A. Terry’s Qualifications
Kris Terry is the President of Kris Terry & Associates, a consulting firm in the oil
and gas industry. 	Prior to opening her consulting firm, Terry worked for Fina Oil and
Chemical Company as an attorney, gas contracts Manager, Manager of Regulatory Affairs
and Litigation, and Manager of Gas Marketing. 	Docket No. 129, p. 3. 	Terry’s Expert
Report (“Report”) is both lengthy, covering almost 90 pages, and extensive, offering
opinions on numerous topics related to this class action. 	Id., Ex. 1. 	The Corrected
Supplemental Expert Report (“Supplement”) provides an additional 17 pages. Id., Ex. 2.
An expert must be qualified to testify on the proposed subject matter. “To qualify
as an expert, [the witness is] required to possess such skill, experience or knowledge in that
particular field as to make it appear that his opinion would rest on substantial foundation
and would tend to aid the trier of fact in his search for truth.” Lifewise Master Funding v.
Telebank, 374 F.3d 917, 928 (10th Cir. 2004) (quotation and citationss omitted). 	The
testimony must also concern scientific or specialized knowledge that will assist the jury in
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understanding or determining a fact in issue. 	See Daubert, 509 U.S. at 592. 	“The issue
with regard to expert testimony is not the qualifications of a witness in the abstract, but
whether those qualifications provide a foundation for a witness to answer a specific
question.” Graves v. Mazda Motor Corp., 675 F. Supp.2d 1082, 1092 (W.D. Okla. 2009),
aff’d, 405 Fed. Appx. 296 (10th Cir. 2010) (quotation omitted). Accordingly, an “expert’s
qualifications must be both (i) adequate in a general, qualitative sense (i.e., ‘knowledge,
skill, experience, training or education’ as required by Rule 702); and (ii) specific to the
matters he proposes to address as an expert.” 	Id.; see also Gardner v. General Motors
Corp., 507 F.2d 525, 528 (10th Cir. 1974) (proposed expert “should not be required to
satisfy an overly narrow test of his own qualifications”).
Rule 702 explicitly allows an expert witness to testify “in the form of an opinion or
otherwise,” thus indicating that experts may do more than offer opinions. 	Fed. R. Evid.
702 advisory comm. notes (2000) (“The rule accordingly recognizes that an expert on the
stand may give a dissertation or exposition of scientific or other principles relevant to the
case, leaving the trier of fact to apply them to the facts.”). See also United States v. Mulder,
273 F.3d 91, 102 (2nd Cir. 2001) (expert may present background information to help jury
understand issues); 29 Charles Alan Wright & Victor James Gold, Federal Practice and
Procedure § 6263 & n. 32 (1997 & Supp. 2012) (experts may describe recognized
principles, provide general background, or simply explain other evidence).
Plaintiffs do not challenge Terry’s qualifications, Docket No. 168, p. 27, lns. 19-21,
and rightly so. See, e.g., Ulibarri v. Southland Royalty Co., LLC, 2019 WL 1226962, at *4
(D.N.M. Mar. 15, 2019) (“As a threshold matter, the Court finds that Ms. Terry is qualified
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to offer her opinions on the customs and practices, usage of terms, and historical context
and circumstances in the oil and gas industry that have developed to shape common
understanding of oil and gas agreements.”); Abraham v. WPX Prod. Prods., LLC, 184 F.
Supp. 	3d 	1150, 	1206 	(D.N.M. 	2016) 	(“Terry’s 	thorough 	education 	and 	extensive
experience in oil and gas litigation give her the specialized knowledge and experience to
make her opinion rest on a substantial foundation. . . . Terry has also testified in numerous
oil-and-gas disputes, including one before this Court . . . The Court therefore concludes
that Terry meets rule 702’s requirement that she be ‘qualified as an expert by knowledge,
skill, experience, training, or education.’”) (quoting Fed. R. Evid. 702). 	Defendant
demonstrates that Terry has the requisite education, training and experience, and the
undersigned Magistrate Judge likewise finds her qualified.
B. Motion to Exclude Portions of Kris Terry’s Expert Report & Supplemental Report
Plaintiffs challenge Terry’s original Report on three grounds: (1) Terry applies an
improper legal standard that is contrary to Oklahoma law and/or she relies on inapplicable
law, (2) her opinions were prepared solely for litigation, and (3) she provides improper
narratives/summaries of the evidence that invade the province of the judge and jury.
Plaintiffs challenge Terry’s supplement on two grounds: 	(1) it is a legal critique of
Plaintiffs’ legal arguments, consisting of the culmination of all her inadmissible legal
conclusions, and (2) it is untimely.
Much of Plaintiff’s argument is that Terry applies an improper legal standard or
relies on inapplicable law. The undersigned Magistrate Judge is capable of evaluating an
expert’s testimony in light of the applicable law of a case. Here, the District of Colorado
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is particularly helpful in explaining the line between permissible and impermissible
testimony:
An expert may opine on factual issues, including the industry standards in
his field. 	See O'Sullivan v. Geico Cas. Co., 233 F. Supp. 3d 917, 929 (D.
Colo. 2017). This is true even if the relevant industry standards are derived
from case law or other legal sources. 	An expert witness “may refer to the
law in expressing an opinion without that reference rendering the testimony
inadmissible,” and may “explain[ ] a discrete point of law which is helpful
to the jury’s understanding of the facts.” 	Specht v. Jensen, 853 F.2d 805,
809-810 (10th Cir. 1988). “So long as experts are clear both in their written
opinions and their trial testimony that they are only referencing their own
understanding of the law to the extent it informs their understanding of
industry standard[s], that is permissible.” 	Worley v. State Farm Auto. Ins.
Co., 2025 WL 580493, at *2 (D. Colo. Feb. 6, 2025).
MA v. Am. Nat’l Prop. & Cas. Co., 2025 WL 4095845, at *3 (D. Colo. Sept. 30, 2025); see
also Romeo v. Antero Resources Corp., 2021 WL 215494, at *3-4 (N.D. W. Va. Jan. 21,
2021) (preventing an expert from opining on the interpretation of the royalty provisions in
the Class Leases, but allowing him to “explain terms of art in the oil and gas industry, and
to describe certain customs and usage within that industry, [as] such testimony [would] aid
the jury's understanding of a complex industry and is admissible.”); Noble Bottling, LLC v.
Gora LLC, 2023 WL 105333, at *3 (W.D.N.C. Jan. 4, 2023) (“While Federal courts have
consistently held that it is typically improper for a court to rely on expert testimony for the
purposes of interpreting certain terms and/or clauses of a contract, courts may allow an
expert to testify regarding custom and usage of an industry when such an explanation
would be helpful to the jury.”). 	This can admittedly be a very fine line. 	See, e.g., MCC
Mgmt. of Naples, Inc. v. Int’l Bancshares Corp., 468 Fed. Appx. 816, 822 (10th Cir. 2012)
(“He did testify that, in his opinion, it was ‘reasonable to conclude’ that the agreement was
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drafted in a ‘very broad manner,’ a conclusion touching the heart of this dispute, but expert
opinion is not objectionable because it embraces an ultimate issue to be decided by the trier
of fact.”) (citing Fed. R. Evid. 704(a)).
Moreover, “expert testimony prepared solely for purposes of litigation, as opposed
to testimony flowing naturally from an expert’s line of scientific research or technical
work, should be viewed with some caution.” 	Johnson v. Manitowoc Boom Trucks, Inc.,
484 F.3d 426, 434 (6th Cir.2007). But “[w]hile this factor may have significance in those
cases involving scientific or technical methodologies, it has little application,” Raytheon
Aircraft Co. v. United States, 2008 WL 627488, at *10 (D. Kan. Mar. 4, 2008) (internal
citations omitted), to oil and gas industry standards and lease language variances in leases
involving payment of royalties. 	Furthermore, Plaintiffs’ arguments that Terry’s expert
testimony for other Defendants in these royalty underpayment cases was “rejected,” goes
to the merits, not the question of inclusion for consideration.
Having reviewed Terry’s Report and Supplemental Reports as part of the review of
Plaintiffs’ Motion for Class certification, the undersigned Magistrate Judge finds they
should not be stricken. 	The Court has the expertise to distinguish between legal
conclusions and relevant factual information, and will not treat legal conclusions as
established facts. 	See Allbaugh v. California Field Ironworkers Pension Tr., 2014 WL
2112934, at *7 (D. Nev. May 20, 2014) (“The Court has sufficient experience ignoring the
legal conclusions of counsel and not treating those conclusions as established facts. 	Ms.
Kroll does have personal knowledge of the content of the documents produced by
Defendants, and her representation that notices have not been produced in discovery is
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more efficient than filing and asking the Court to cull through 7,700 pages of discovery
documents to demonstrate that same point. 	Plus, evidence considered for purposes of
certification does not need to be admissible.”); In re Fibrogen Sec. Litig., 2023 WL
5600077, at *2 (N.D. Cal. Aug. 29, 2023) (“[T]he Court will disregard the argument and
read the declaration for its factual content and authentication of the factual record.”) (citing,
inter alia, Allbaugh, 2014 WL 2112934, at *7 (finding that even if declaration included
legal conclusions, “the proper remedy is not to disregard [the attorney’s] declaration
wholesale,” as “[t]he [c]ourt has sufficient experience ignoring the legal conclusions of
counsel and not treating those conclusions as established facts.”). 	Given that Terry’s
Reports were provided at the class certification stage and the disfavored position of motions
to strike, the Court declines to strike either of Terry’s Reports. Terry testified that she was
not offering a legal opinion, see, e.g., Docket No. 168, p. 107, lns. 14-17, and further
resolution of these issues was not required for purposes of Plaintiffs’ motion for class
certification. 	See, e.g., Romeo, 2021 WL 215494, at *3-4 (preventing an expert from
opining on the interpretation of the royalty provisions in the Class Leases, but allowing
him to “explain terms of art in the oil and gas industry, and to describe certain customs and
usage within that industry, [as] such testimony [would] aid the jury's understanding of a
complex industry and is admissible.”). 	For the reasons set forth above, the Court denies
Plaintiffs’ Motion to Exclude portions of Terry’s Expert Report.
C. Timeliness of Terry’s Supplemental Report
Lastly, Plaintiffs contend that Terry’s Supplement was filed out of time and was
improper rebuttal. According to the Fourth Amended Scheduling Order [Docket No. 106],
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Plaintiffs’ 	expert disclosures were due on 	June 13, 	2025, and 	Defendant’s expert
disclosures were due August 8, 2025. 	Expert depositions were then to be completed by
September 5, 2025. 	Terry’s expert report was submitted on August 8, 2025, and her
corrected supplemental report was submitted to Plaintiffs approximately 36 hours before
her deposition on November 4-5, 2025. Docket No. 141, Exs. 4-5. 	She was deposed on
November 4-5, 2025.
Terry, who was contracted to provide an expert opinion with regard to the lease
contract language relevant to royalty calculation, see Docket No. 141, Ex. 4, p. 3, did not
have the benefit of Plaintiffs’ numerous lease charts until Plaintiffs filed their motion for
class certification on September 13, 2025. 	Before addressing the issue of Terry’s
Supplemental Report, the parties are reminded that this failure of planning caused them to
dedicate substantial space in the briefing on the motion for class certification asking the
Court to resolve issues that could have and should have been addressed prior to the filing
of class certification. Given that both parties then ultimately attempted to raise substantive
arguments through the creation of additional exhibits in order to avoid the page length
limitations for their briefing, neither party should have been engaging in argument and use
of resources and experts that communication would have resolved, or asked the court to
waste its time parsing these issues. The Court would have preferred to grant an extension
of time to allow this form of clarity rather than devote judicial resources to parsing and
disposing of such issues. 	While Plaintiffs may have preferred to withhold their multiple
lease charts until filing for class certification for strategic reasons, the result is that
Defendant was then required to entirely reevaluate its understanding of Plaintiffs’ proposed
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class after already submitting its expert report. 	For this reason alone, the undersigned
Magistrate Judge finds that Terry’s Supplement was an appropriate Supplement, and not a
rebuttal to an existing expert report, following Plaintiffs’ provision of the Lease Charts.
Plaintiffs nevertheless argue that any supplement would have been due within 30
days, or by October 13, 2025, following the September 13, 2025, filing of the motion for
class certification. See Fed. R. Civ. P. (a)(2)(D)(ii) (requiring any evidence intended solely
to contradict or rebut evidence on the same subject matter identified by another party Rule
26(a)(2)(B) or (C), within 30 days after the other party’s disclosure). The lease charts were
not created by a witness, but by Plaintiffs’ counsel. 	Defendant therefore asserts that the
timing for providing Terry’s supplement is governed by Fed. R. Civ. P. 26(a)(3) (requiring
pretrial disclosures to be made at least 30 days before trial), and (e)(2) (requiring
supplements to expert reports to be due by the time a party’s pretrial disclosures under Rule
26(a)(3) are due). The Court agrees. The undersigned Magistrate Judge therefore declines
to find Terry’s Supplemental Report untimely.
CONCLUSION
Accordingly, 	Plaintiffs’ 	Motion 	to 	(1) 	Exclude 	Testimony 	of 	Defendant’s
Lawyer/Expert, Kris L. Terry; and (2) Strike the Terry Rebuttal [Docket Nos. 126, 129] is
DENIED.
DATED this 27th day of July, 2026.
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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